R v Billy Charles Nash & Anor

In criminal proceedings, serious disclosure failures, improper handling of an apparently vulnerable witness and inadequate jury directions may cumulatively render a trial unfair, even where the prosecution case is strong. A judge considering hearsay because a witness is said to be unfit should generally rely on reliable independent evidence, proceed in the presence of the parties and consider appropriate special measures. A jury should receive timely directions about documentary hearsay and should be told promptly when evidence is withdrawn. Where disputed hearsay remains before the jury at the close of the prosecution case, the judge should consider the safeguard in section 125 of the Criminal Justice Act 2003. Relevant evidence concerning possible contamination of witnesses should not be excluded merely because its probative value is limited.

Following a trial in the Crown Court at Portsmouth, Billy Nash and Luke Nash were unanimously convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. The Recorder admitted a witness’s written statement under section 116(2)(b) of the Criminal Justice Act 2003 after privately assessing her apparent inability to give evidence. Disclosure failures later revealed material concerns about the statement’s reliability. The Recorder directed the jury to disregard the evidence only in the summing-up, did not consider section 125 of the 2003 Act, and excluded body-worn footage relevant to possible witness contamination. The central issue was whether these procedural and evidential errors rendered the convictions unsafe.

The appeals were allowed. The convictions were quashed and a retrial was ordered.

1. The continuing disclosure duty under section 3 of the Criminal Procedure and Investigations Act 1996 required prompt disclosure of material reasonably capable of undermining the prosecution case or assisting the defence. The OEL, Witness Support emails and the prosecution advocate’s conversation with the witness should all have been disclosed. The failures were fundamental and materially affected the admission of the witness’s written evidence.
2. The Recorder’s private, undocumented meeting with the witness was fundamentally wrong. The Court applied the guidance in R v Lubemba and JP [2014] EWCA Crim 2064. A judge assessing fitness to give evidence should ordinarily proceed in the presence of the parties, avoid private questioning, consider special measures and obtain reliable independent evidence. Reliance solely on an undocumented personal assessment will normally be suspect.
3. Although the ordinary starting point is that a jury will follow a direction to ignore evidence, the judge must assess whether the circumstances create a continuing risk of prejudice. Here, the tension between the witness’s documents required directions on the limitations of hearsay. The jury should also have been told promptly when the evidence was withdrawn, with an adequate explanation to prevent speculation.
4. Because the disputed hearsay remained before the jury beyond the close of the prosecution case, the Recorder should have considered section 125 of the Criminal Justice Act 2003. That provision was an important procedural safeguard, and its consideration might well have led to the jury being discharged.
5. The body-worn footage was relevant and admissible on the issue of possible contamination of other witnesses. Its probative value might have been limited, but that did not justify excluding it altogether; at least some of it should have been admitted.
6. The combined effect of the errors rendered the trial process unfair and created a real risk that the jury would not have reached the same verdicts had the errors not occurred. The convictions were therefore unsafe.

1. Court of Appeal (Criminal Division): Appeals allowed. The convictions were quashed, a retrial was ordered and conditional bail was granted pending retrial.
2. Crown Court at Portsmouth: The appellants were convicted on 29 June 2022 and sentenced to 45 months’ imprisonment on 24 February 2023.